Supreme Court New South Wales

• Medium Neutral Citation: Chittick v Pitney [2014] NSWSC 1557
• Hearing dates: 31 October 2014
• Decision date: 06 November 2014
• Before: McCallum J

Decision

Rulings as to form of pleading

• Catchwords: DEFAMATION - pleading - form of imputations - no question of principle
• Cases Cited: Polias v Ryall [2013] NSWSC 1267
• Category: Interlocutory applications
• Parties: Brett Chittick (plaintiff); Ngaia Pitney (first defendant); Cameron Denny (third defendant)
• Representation: Counsel: R Glasson (plaintiff); S Fitzpatrick (defendants); Solicitors:
• File Number(s): 2014/33793
• Publication restriction: None

Judgment

1 HER HONOUR: These are proceedings for defamation arising out of a series of posts on Facebook. The defendants have objected to some of the imputations sought to be relied upon by the plaintiff. This judgment determines those objections. It was necessary to reserve reasons only for lack of time to give an oral judgment in the Defamation List last Friday, the argument having been reached close to the end of the day.

2 The argument proceeded by reference to a proposed amended statement of claim which has not yet been filed. In that pleading, as in the existing pleadings, the plaintiff has pleaded eight separate posts on two separate Facebook timelines with each post pleaded as a separate publication. However, the schedules to the pleading draw the first to fifth posts together (being those published on the first defendant's timeline) as schedule A and the sixth to eighth posts together (being those published on the third defendant's timeline) as schedule B. During the course of argument Mr Glasson, who appears for the plaintiff, indicated a preference to re-plead the matters complained of so as to rely on schedule A as a single publication and schedule B as a single publication. In my view, that would be helpful in simplifying the claim. Leave to amend in that way should be granted, if that is the plaintiff's preferred course.

3 Subject to one issue, that proposed amendment did not affect the defendants' objections.

4 The first objection is to imputation 14(a), which is "the plaintiff is an insane idiot." The words "insane idiot" are drawn in terms from the relevant post, which asks "what sort of insane idiot bought Goonoo Goonoo Rd Vets". Mr Fitzpatrick, who appears for the defendants, submitted that the imputation is bad in form, since it raises "compound acts or conditions" (insanity and idiocy). I do not accept that submission. The imputation is that the plaintiff belongs to the class of people who have each (both) of those attributes or characteristics.

5 Separately, however, it was objected that the imputation is embarrassing since it amounts to meaningless abuse and the imputation is rhetorical. Mr Fitzpatrick relied in that context on my decision in Polias v Ryall [2013] NSWSC 1267 at [19].

6 Mr Glasson submitted that, as noted in Polias at [14], the issue whether a defamatory publication amounts to mere abuse is properly a question for the jury to the jury. In my view, however, the difficulty is one of imprecision. It is impossible for the defendants to know precisely what the term "insane idiot" means. It states a conclusion but fails to distil what act or condition of the plaintiff sustains it. As in Polias, the difficulty is revealed by a consideration as to what would be required to be proved in order to justify the imputation. In my view, imputation 14(a) is embarrassing in that sense and should be struck out.

7 The next objection is to imputation 14(b), which is "the plaintiff deliberately turned off the power to a neighbouring business (Brad's Auto) so as to cause damage to that business". Mr Fitzpatrick submitted that the ordinary reasonable reader would not take the meaning that the specific motivation for turning off the power was to cause damage to the business. I accept that the matter complained of could be understood in a more benign sense (that damage to the business was simply the result of rather than the motive for turning off the power). However, it does not follow that the meaning captured in the imputation is not reasonably capable of being conveyed. In my view it is. The objection to imputation 14(b) should be rejected.

8 There was an objection to imputation 14(c) but that was resolved by an amendment proposed by Mr Glasson during argument.

9 The next objection is to imputation 15(a), which is "the plaintiff is a coward who hid in a toilet to avoid the police when they sought to investigate the alleged assault". Mr Fitzpatrick submitted that this imputation is also bad in form as raising compound acts. In my view, however, the imputation should clearly be read as identifying, in the description of hiding in a toilet, the particular cowardice referred to. I do not think it is a compound allegation. Separately, Mr Fitzpatrick submitted that the post is incapable of conveying the notion of cowardice. I disagree. In my view, the act of hiding from police could be characterised as one of cowardice.

10 The next objection is to imputation 16(b), which is "because the plaintiff is a violent person, animals in his care are in danger of being treated violently". Mr Glasson accepted during argument that it would be preferable to have the defamatory sting (being a violent person) specified in the principal clause of the imputation rather than in a subordinate clause. The defendants' objection was that the imputation raises compound acts. As I understood Mr Glasson's position, the imputation was intended to specify a single defamatory condition, namely, that the plaintiff, a vet, is so violent that animals in his care are at risk of violence. The plaintiff should have leave to re-plead that imputation as foreshadowed by Mr Glasson.

11 The next objection is to imputation 18(a), which is "the plaintiff lied about having a haircut appointment in order to avoid having to handle the termination of an employee". Again, the objection was that the imputation raises a compound act. In my view, that objection is misconceived. To say that someone lied and to identify the alleged purpose of the lie does not entail any embarrassment on account of duplicity. The identification of the purpose of the lie simply adds specificity to the imputation of dishonesty.

12 The remaining objections repeated arguments already dealt with above, save for one matter. Imputation 20(b) is "the plaintiff deliberately turned off the power to Brad's Auto on many occasions so as to cause damage to that business". The present pleading identifies that imputation as arising from "the seventh post, when read with the sixth post and/or first post". That raises the complexity referred to at the outset of this judgment. The defendants' objection was that, on its own, the seventh post is not capable of conveying the meaning that anything occurred "on many occasions". The objection was properly taken. However, it will be cured if the plaintiff re-pleads the publications in the manner foreshadowed by Mr Glasson.

13 It remains to observe that, having regard to the nature of the defamation and the likely limited scope of the publications, these are proceedings in which there is an obvious risk that the legal costs of prosecuting the claim will quickly become disproportionate to the interest at stake. Accordingly, I propose to hear the parties as to why the proceedings should not be referred for a court-ordered mediation or else remitted to the District Court.

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Decision last updated: 06 November 2014